!!Экзамен зачет 2023 год / Michaels Jansen Private Law - History-1

3. Systematising Private Law

Codifications structurally changed the nature of systematic and doctrinal legal reasoning. As long as the authoritative texts of a legal system do not presuppose an explicit or implicit system, as was the case in Europe before the codifications292 and still is today in the common-law jurisdictions293, systematic thinking may be constructive, innovative, and thus open to revision. Under such conditions, systems are brought to the law “from the outside”294. More recently, such an approach has been presupposed by the American restatements and by enterprises to formulate transnational doctrinal systems as a basis for comparative law295. As long as the different national systems exhibit sufficient similarities in substance, then, it may, in principle, be possible to formulate such systems transnationally296.

Systematic thinking within a codified legal order, however, aims at finding and, at best, developing an authoritatively imposed system within the law297; it is part of the applicative hermeneutic process of interpreting a sovereign legislator’s command298. Accordingly, codifications tend to ossify the systematic as-

292Supra n. 195; for the system debates of the 19th century German doctrine that ultimately determined the system of the German Civil Code, see Andreas B. Schwarz, Zur Entstehung des modernen Pandektensystems: SavZ/Rom. 42 (1921) 578ff.

293For approaches to systematise the common law see Peter Birks, Definition and Division: A Meditation on Institutes 3.13, in: The Classification of Obligations, ed. by id. (1997) 1ff.; id., English Private Law I and II (2000) esp. the introduction, pp. xxxv ff.; Stephen Waddams, Dimensions of Private Law: Categories and Concepts in Anglo-Ameri- can Legal Reasoning (2003); cf. also The Division and Classification of the Law, ed. by John A. Jolowicz (1970). For a critique of such approaches Geoffrey Samuel, System und Systemdenken, Zu den Unterschieden zwischen kontinentaleuropäischem Recht und Common Law: ZEuP 1995, 375ff.; id., English Private Law: Old and New Thinking in the Taxonomy Debate: Oxford J.Leg. Stud. 24 (2004) 335ff.; id., Can the Common Law Be Mapped?: U. Toronto L.J. 55 (2005) 271ff.

294Methodologically they are perhaps best understood as a reconstructive enterprise, described (for political theory) as a “reflective equilibrium” by John Rawls, A Theory of Justice (rev. ed. 1999) 41ff. For legal doctrines see Nils Jansen, Dogmatik, Erkenntnis und Theorie im Europäischen Privatrecht: ZEuP 2005, 750, 768f., further references within (cited Dogmatik).

295Cf. Ulrich Drobnig, Methodenfragen der Rechtsvergleichung im Lichte der “International Encyclopedia of Comparative Law”, in: Ius Privatum Gentium FS Rheinstein I (1969) 221, 228ff.; Mauro Bussani/Ugo Mattei, The Common Core Approach to European Private Law: Colum.J.Eur.L. 3 (1997/98) 339ff. These systems, however, are of a mere expository function; they do not aim at achieving internal, normative coherence of the legal system.

296Accordingly, in the times of the ius commune local laws were typically explained within the transnational systematic framework of Justinian’s Institutiones: Luig, Institutionenlehrbücher (supra n. 156) 64ff. See also Ralf Michaels, The Functional Method of Comparative Law, in: The Oxford Handbook of Comparative Law (supra n. 47) 339, 372f.

297Cf. Claus-Wilhelm Canaris, Systemdenken und Systembegriff in der Jurisprudenz2 (1983) 13 and passim.

sumptions of the times of their enactment and thus may become an obstacle to adequately describe the law’s development over time. This is so, because only individual legal rules can be changed (relatively) easily by legislation or by judicial development299: To replace a traditional legal system with a new one has proved difficult and often even impossible. As a natural consequence, tensions emerge between the codification’s implied systematic structure and the changing values and rules. Thus, the systematic assumptions implicit in codifications may create serious problems for legal reasoning and for the judicial development of the law300.

If the law should remain responsive to such a change of values, or if such change is inevitable (as the history of codified law suggests)301, it may be preferable to leave the task of system-building to academia and limit the legal competences of democratically legitimated legislative bodies to normative decisionmaking. In the end, the questions of how to formulate doctrine and systems should be decided by more “scholarly” criteria intrinsic to the law – like technical precision, adequacy, and internal coherence; these criteria are largely independent of political authority. In this way, legal knowledge could again become independent of national legal systems; the development of a European jurisprudence formulating “principles” of European law302 can be seen as a step into this direction303.

298On applicative and constructive legal theories Jansen, Dogmatik (supra n. 294) 764ff.

299Zimmermann, Codification 108f.

300This has been shown in more detail for the law of delict; cf. Jansen 76ff., 181ff., 271ff.; id., Duties and Rights in Negligence, A Comparative and Historical Perspective on the European Law of Extracontractual Liability: Oxford J.Leg.Stud. 24 (2004) 443, 447ff.; Reinhard Zimmermann, Wege zu einem europäischen Haftungsrecht, in: Grundstrukturen des Europäischen Deliktsrechts, ed. by id. (2003) 19, 29f. More generally Jansen, Brunnen der Vergangenheit (supra n. 64) 210ff., 217ff.

301See, for Germany, especially the Historisch-kritischer Kommentar (supra n. 109); the contributions there make apparent that the law’s development continued despite its codification; in fact, the German codification was only one step in the development of German private law.

302Supra at nn. 45ff.

303See Michaels/Jansen (supra n. 1) 878f. It would be necessary, however, to develop the adequate methodological instruments necessary for such an enterprise. This leads to a far range of further questions that do, however, not immediately concern the relation of private law to the state: Can legal principles be expressed adequately in legal systems? Is the choice to systematize in itself a normative decision, representing a certain (public) policy? Is the structure of a system neutral as to its content, or does it have an impact on the substance, or at least its perception? How much and what kind of similarity between different legal systems would be needed for doctrinal discourse and legal knowledge that transcend single legal systems?

4. Conclusion

These are questions not for the past but for the present and for the future; they are questions central to debates of Europeanization and globalization. Yet, this article has shown, on the one hand, that these questions are the result of a specific historical development: There is no “naturally given” relation between private law and the state. On the other hand, it has become apparent that these questions are not simply the fruit of totally new tensions between private law and the state, either. Similar questions have occupied the minds of lawyers for centuries. Accordingly, the article has shown a couple of answers given in the long and winding history of German and US-American law. Obviously, these answers cannot simply be copied; our period is different from those that came before it. At the same time, to ignore these debates in answering the questions of our time would mean to dispense with centuries of experience with these, or similar, questions. Even more importantly, our modern questions are often not fully understood if they are not seen as resulting from specific, partially contingent historical developments. If this article has succeeded in making this historical background of the modern debates more accessible, it has served its aims.